Category Archives: Modifications

Depositions are routinely taken in lawsuits, and are common in family law cases. A deposition is a part of the “discovery” process where the parties or a witness are asked questions, under oath, outside of Court, so that the attorney will know what they will say when in Court. You have heard the old maxim that an attorney should never ask a question that he doesn’t know the answer to, well the deposition is the mechanism where you can ask that question. A wide variety of questions may be asked in the depositions even those that likely would not be relevant in Court.

Depositions are usually at the attorney’s office. The attorneys, the parties and a Court reporter are typically the only persons in attendance. Depositions are transcribed and may be videotaped.

Questions about the witnesses education, work, finances and efforts with regards to the children are all fair game. The dirty details of fault are also fair game. Naming names and being specific are part of the process too. Depositions are a tool to gain information as well as pin witnesses or parties down on what their “story” is so that it does not “change” later.

I had an instance where I took the father’s deposition in a custody modification case. Both parties had remarried. Step-parents always have a bull’s eye on their backs in custody modification cases. I made sure and asked the father several times and different ways if he had any issues with step-dad. The answer was “No.” Well, it took several months to get to trial. At trial the father tried to change his tune. He attempted to say he had serious issues with step-dad and had for as long as he had been in the picture. I asked the father if recalled his deposition. He stuttered. I showed him the specific page and questions asked. He said he must have forgotten about the serious issues at the time of the deposition. Right. He backed off on his assertions and the deposition “saved” the day.

Objections are rare in family law depositions, or at least less common than in trial. They are typically limited to the “form of the question,” being made to preserve the right to object in the future, but the deponent usually still answers the question. Questions regarding crimes, however, can be objected to and those are usually not answered – with the deponent pleading the 5th. The 5th Amendment to the U.S. Constitution gives all persons the right to not incriminate themselves. How does this come into play in family law? Adultery is a crime in Mississippi (blogged previously).

The bottom line in depositions is, while they are nerve wracking for the deponent, ultimately you are just answering questions and your job is to tell the truth and rely on your attorney.

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Modification is the process that is used to change a Court Order. We previously discussed how NOT to modify your papers here.

Below are the basics for the right way to modify your current Court Order. Child Custody, Visitation and Child Support are always modifiable. However, each has a separate standard. Each require that you prove something different…

1. Child Custody is the most difficult to modify. The non-custodial parent, must demonstrate 1) a material change in circumstances, 2) adverse to the child, 3) in the home of the custodial parent. In English, dad has to show that there has been a big change, harmful to the child and it was mom’s fault. It does not matter how much better dad is doing. It does not matter that he has a new job, making good money, and has remarried Mary Poppins. The Standard concerns what is going on in mom’s house.

A material change could be bad grades, serious behavior problems, serious problems with mom or serious problem with mom’s new beau. Now, once you show the bad change, harmful to the child, and it’s mom’s fault, dad wins, right? No. That provides the Court the authority to go back through the Albright factors for the Court to determine which parent is in the best interest of the child.

2. Child Support is modifiable upon a showing of 1) a material change in circumstances, unanticipated at the time of the Order and that either the 2) paying parent’s income has increased (or a non-voluntary decrease) in a meaningful capacity or that the 3) child’s reasonable needs and expenses have increased, or both an increase in income and needs. It should be noted that Child Support is statutory, as noted here, and the paying parent’s responsibility to pay does not continue to increase, just because his/her income does.

3. Visitation has the lowest standard to modify. In order to modify visitation all one needs to do is demonstrate that the current schedule is not working. This can be shown by showing that a party moved over several hours away making every other weekend unworkable or by showing that due to the child’s schedule, or a parent’s work schedule the visitation plan is not working. This one is easier to pursue, but the outcome is not always predictable, so have a plan for what schedule will work if you are seeking to change it because of distance or a work schedule issue.

*Certain other aspects of Order’s can/may be modifiable as well; ie; alimony, other child benefits.

Matthew Thompson is a Mississippi Child Custody Attorney and reminds you to follow your papers.

Follow the blog: BowTieLawyerYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

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This is an all too common occurrence. Mom and Dad get divorced, rock along and a few years down the road they decide to change their deal. They are getting along, at least better than before the divorce, and both are burned from their past experiences with attorneys and attorney fees. So…they decide we can handle this like mature adults. Dad wants a custody tweak, Mom needs a support adjustment – bam-shabang– let’s just do it.

Mom and Dad agree that the Order will be “modified.” They switch to a week-on, week-off custody arrangement. The kids are older, it works. Dad starts paying support directly for the benefit of the kids. He pays for the child’s car and insurance, and picks up health insurance which was previously mom’s responsibility. Dad does not pay mom directly. It’s about the same money, probably. What could go wrong? A lot of things!

Court Orders may only be modified by other Court Orders. Once an Order is issued and in place the parties are bound to follow it. This is so ironclad that the Court has a mechanism in place to enforce its Orders that can result in the breaching party having to pay fines and/or go to jail. This process is called Contempt. If you are not following the Order in your case, you are subject to a contempt petition being filed by the other party.

But if we agreed what’s the big deal? The deal is that Agreement is not worth the paper its written on if it is not approved by the Judge. At some point in the future, and it never fails, Mom and Dad have a falling out, again. Mom goes to attorney and tells him that Dad has not paid child support in two years. Mom sues Dad for Contempt for all of the “back” support and then “un-agrees” to the custody change and goes back to an every other weekend schedule for visitation. Dad counter sues for a custody modification seeking custody now due to mom’s change and contempt over the health insurance issue. The only sure thing now is that each has considerable contempt for the other and the Court is left to sort it out.**

Dad scrambles to get his “proof” that he paid the car and insurance, but that is not what was ordered. Mom tries to justify her position on the visitation retread because that is what the papers said, as if her hands are tied now and the “papers” know best. Had they done an Agreed Order and had it approved by the Court, they could have accomplished the same thing and not left the door open for future problems of having the old Order used against them. Both would have been protected and still had the same “teeth” in enforcing their Agreement it would have just been enforcement of their new Agreement. Now both have risk and have conducted, at least, actionable non-compliance with the Court order.

If you modify your Order/Agreement do it in writing, signed and approved by the Court. It’s the only way to guaranty that the Agreement is enforceable and for protection from being subject to Contempt for not doing what was in the prior Order.